Olszewskifliermemo

BALTIMORE COUNTY, MARYLAND INTER-OFFICE CORRESPONDENCE

TO:

All Councilmembers

FROM:

John Olszewski, Sr. Councilman, Seventh District

SUBJECT:

Unsolicited Advertising Circulars

DATE:

July 31, 2009

As I indicated in my memo of July 10, I asked County Executive Smith to veto Bill 49-09 because it contained a drafting error. He did so, and I plan to introduce a corrected bill on August 3. As you know, this bill prohibits: 1. The delivery of an unsolicited advertising circular that does not include a statement and a toll-free phone number for a person to call to notify the publisher to cease delivery to his address; or 2. The delivery of a circular to an address after the resident has called to ask that delivery be stopped. Delivery by the U.S. mail or a private mail delivery service is not affected by the bill. The bill’s definition of “unsolicited advertising circular” is as follows: (A) DEFINITIONS. IN THIS TITLE, THE FOLLOWING WORDS HAVE THE MEANINGS INDICATED. (B) UNSOLICITED ADVERTISING CIRCULAR. “UNSOLICITED ADVERTISING CIRCULAR” MEANS ANY PRINTED OR WRITTEN CIRCULAR, NOTICE, OR OTHER ITEM THE PREDOMINATE PURPOSE OF WHICH IS: (1) TO ADVERTISE ONE OR MORE PRODUCTS, SERVICES, OR OTHER THINGS FOR SALE, LEASE, OR TRADE; (2) TO DIRECT ATTENTION TO ONE OR MORE BUSINESSES, COMMODITIES, SERVICES, EVENTS, OR OTHER ACTIVITIES FOR WHICH A FEE IS CHARGED OR SOLICITED; OR (3) OTHERWISE TO PROMOTE ACTIVITY OF A BUSINESS OR COMMERCIAL NATURE. This is the same definition that appeared in Bill 49-09. Clearly, the defined term includes neither newspapers nor campaign material; only the most strained interpretation could produce such a result. The Law Office agrees.

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I do not intend to explicitly exempt either newspapers or campaign material from the bill’s definition. It is not necessary. In fact, the decision to specifically refer to these items caused the problem with the final version of Bill 49-09. The Press Association asked for an amendment to Bill 49-09. I felt it was unnecessary but agreed to do so because I thought it would be a harmless amendment. However, I did not use the amendment offered by the Association; the effect of that amendment, intended or otherwise, would have been to permit a newspaper publisher to deliver unsolicited advertising circulars. Instead, the bill, as amended, referred to a definition of newspapers used in the State Code. That definition, unfortunately, could be interpreted to exclude free newspapers, thereby subjecting free papers to the prohibitions of Bill 49-09. That was never my intention, so I asked the Executive to veto the bill. The bill as now drafted covers only materials that advertise goods, products or services for sale, lease or trade, or direct attention to services or goods or events that charge a fee, or in which the predominant purpose is to promote businesses or commercial activity. Newspapers and campaign material do not fit this definition. The Law Office agrees. I have also added a provision to the bill that limits its scope to publishers that deliver more than one circular to a residential address in any six-month period. I did this to address the legitimate concern that, without such a provision, the bill would apply, for example, to a teenager who has a lawn mowing business during the summer and wants to advertise his services at the beginning of the mowing season by distributing a circular to his neighbors. As to the issue of enforcement, the primary concern is to be able to prove that a call was made to the distributor to tell him to cease deliveries of these unsolicited circulars. Absent some certainty, PADM may be reluctant to issue a citation to a distributor. The bill authorizes PADM to adopt regulations to carry out its provisions. Mr. Kotroco has indicated that his department’s regulations would include a requirement that an affidavit be filed attesting to the fact that the person had called the toll-free number on the circular to request that future deliveries cease. With such an affidavit on file, PADM would then feel justified to issue a citation.

JO:dp all cc unsolicited advertising circular.wpd

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